FELLIN v. SAHGAL (2000)

In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated February 8, 1999, as denied their motion to strike the defendants' answer based on the defendants' alleged spoliation or destruction of evidence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The nature and degree of the penalty to be imposed for failing to disclose is within the discretion of the court (see, Garnett v. Hudson Rent A Car, 258 A.D.2d 559, 685 N.Y.S.2d 463;  Soto v. City of Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691).   The drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith (see, Harris v. City of New York, 211 A.D.2d 663, 622 N.Y.S.2d 289).   Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion to strike the defendants' answer (see, CPLR 3126;  cf., Zoref v. Glassman, 258 A.D.2d 460, 683 N.Y.S.2d 879;  Jaffe v. PJA Motor Corp., 253 A.D.2d 853, 678 N.Y.S.2d 503;  DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 682 N.Y.S.2d 452).

MEMORANDUM BY THE COURT.